Judge opposes class action in TVA coal ash suits

photo In this file photo from December 16, 2010, a sign announces that the former Gupton Farm is now property of TVA two years after the Kingston fossil plant's coal ash spill happened on December 22, 2008.

CHATTANOOGA, Tenn. - The Tennessee Valley Authority won another round in a court fight against lawsuits from the utility's huge coal ash spill, with a magistrate saying no to plaintiff lawyers who asked to seek damages in a class action.

U.S. Magistrate Bruce Guyton recommended denying the class action status sought by attorneys for some of the 457 plaintiffs spread among about 50 current lawsuits, and for any others waiting to sue.

Since the Dec. 22, 2008, spill of 5.4 million cubic yards of toxin-laden sludge in the Emory River and on privately held land beside TVA's' Kingston Plant, the utility has negotiated buyouts of more than 170 properties and is continuing a cleanup that is projected to cost $1.2 billion.

"A class action is not superior to other available methods for fairly and efficiently adjudicating these cases," Guyton said in his recommendation.

"The diversity of claims in these cases and the danger of plaintiffs being excluded from asserting their individual claims for personal injury, medical monitoring, or other claims undermine the adequacy of representation" in a class action, the magistrate's recommendation said.

The federal court in Knoxville has previously ruled that TVA is not liable for punitive damages and that the suits will be decided from the bench, not by jurors, if they go to trial as now scheduled in September.

TVA spokeswoman Barbara Martocci said Thursday that TVA was "pleased" with the magistrate's recommendation against granting class action status. She declined to comment further and said the utility's attorneys would not say anything about the court fight.

Plaintiff attorneys who can challenge the recommendation did not return telephone messages seeking comment Thursday.

Brian Fitzpatrick, a Vanderbilt University Law School assistant professor who specializes in class action cases, said the magistrate's recommendation to deny class action would likely be accepted by the court and "is probably a good thing" for TVA as the defendant.

"If you have 500 people in a lawsuit then that lawsuit is worth a lot more money and there is a lot more risk for the defendant going to trial," Fitzpatrick said. "In general, defendants would prefer not to have to face class actions because they make the case much riskier."

He also said individual suits are more costly for plaintiff lawyers.

"Defendants can take advantage of the fact that is more expensive for the plaintiffs to go forward," Fitzpatrick said.

He also said class actions can benefit some plaintiff lawyers at the expense of others who are pushed aside when their clients join in the class.

"It does seem like things are going pretty well for TVA at this point," Fitzpatrick said.

More than two years after the ash spill, some Roane County residents have said they are having respiratory problems, buying air filters for their houses and hosing away toxic-laden dust.

The ash contains carcinogens and the Environmental Protection Agency described the spill as "one of the worst environmental disasters of its kind." The EPA is still trying to decide if coal ash should be regulated as hazardous.

TVA has contended in court filings that there is no evidence of any health harm from the spill at the plant about 40 miles west of Knoxville and the dust is no more harmful than "dust from a ball field or farm land."

The sludge covered 300 acres around the coal-fired plant, destroyed or damaged about two dozen homes and reached the Emory River that flows into Watts Bar Lake and the Tennessee River system.

TVA provides electricity for utility and business customers in most of Tennessee and parts of Alabama, Mississippi, Kentucky, Georgia, North Carolina and Virginia.